White House backs right to unlock phones

COPYRIGHT LAW

Updated 8:34 pm, Monday, March 4, 2013

Consumers don't have a right to unlock their cell phones, the Library of Congress says.

Consumers don't have a right to unlock their cell phones, the Library of Congress says.

Photo: Victor J. Blue, Bloomberg

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Google has attempted to undercut its rivals by selling its unlocked Nexus 4 at $349.

Google has attempted to undercut its rivals by selling its unlocked Nexus 4 at $349.

Photo: Kevin Thrash, Bloomberg

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SAN FRANCISCO, CA - SEPTEMBER 21: Boxes of the new iPhone 5 are displayed at an Apple Store on September 21, 2012 in San Francisco, California. Customers flocked to Apple Stores across the U.S. to purchase the hotly anticipated iPhone 5 which went on sale nationwide today. (Photo by Justin Sullivan/Getty Images) less

SAN FRANCISCO, CA - SEPTEMBER 21: Boxes of the new iPhone 5 are displayed at an Apple Store on September 21, 2012 in San Francisco, California. Customers flocked to Apple Stores across the U.S. to purchase the ... more

Photo: Justin Sullivan, Getty Images

White House backs right to unlock phones

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The White House threw its weight Monday behind a petition to end a ban on unlocking cell phones, the process of making a phone compatible with any carrier, not just the one that provided the device.

The move comes after the Copyright Office of the Library of Congress removed exemption status for unlocked phones, which means they would violate terms of federal law protecting copyright holders. Without their wireless providers' permission, consumers are subject to lawsuits from carriers for unlocking devices. The decision, made in October by the librarian of Congress, went into effect in January and caused outrage among many digital rights advocates.

The White House's action was prompted by a petition posted on its "We the People" petition page by San Francisco resident Sina Khanifar. After it had received significant public support, both the White House and the Federal Communications Commission issued statements Monday supporting an end to the ban on unlocking.

"The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties" provided the phone is not under contract, wrote senior White House technology adviser R. David Edelman. "In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smartphones."

FCC chimes in

Put into effect in 1998, the federal Digital Millennium Copyright Act attempts to control consumer access to copyrighted material. In many respects it has provided protection for many media and content companies creating businesses online. The law also covers "takedown notices," which content creators can use to have their content removed from infringing websites.

But critics have argued that the copyright law's reach goes too far. Khanifar says the real issue is Section 1201 of the law, its "anticircumvention" provision, which was intended to ban "black box" devices used to remove rights from digitally copyrighted works. Unlocked cell phones were previously exempted from devices covered by that provision, but that changed in October.

Library responds

The Library of Congress - which oversees copyright law - responded to Monday's White House statement, saying, "The rule-making is a technical, legal proceeding and involves a lengthy public process. As designed by Congress, the rule-making serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy."

While support for digital copyright reform from the executive branch is significant, Congress must act to make any change in the procedure. But Genachowski told online news site TechCrunch that his office is investigating whether it has the power to make changes without new legislation.

" 'Unlocking' services have become widespread," the foundation wrote in a brief on the law. "Unfortunately, carriers have responded by filing suit under the DMCA. Instead of being used against copyright infringers, the DMCA is being used to prop up the anticompetitive business models of cellular carriers."

The White House called the exception process for technologies prohibited under DMCA "rigid and imperfect." Derek Khanna, a fellow at Yale Law School and a former Republican congressional staffer, calls it "a kangaroo court," and says that the issue of unlocked phones is important not just to the tech-savvy. Those traveling abroad often unlock their phones to access foreign cellular networks and that should not be a federal crime, Khanna said.

Big cell phone companies like Verizon and AT&T subsidize the cost of a smartphone for customers in exchange for customers signing longer-term contracts, typically two years. Consumers can buy unlocked smartphones, but they usually have to buy them at full price.

No-downside move

Ken Dulaney, a cell phone industry analyst at Gartner, sees the White House's support as helpful, though something of a no-downside political move. But he questions how many people would actually take advantage of unlocking should the decision be reversed. A lot of software for smartphones is carrier-specific, he noted, and many consumers don't know it would not be compatible on other carriers.

"You'd be better off buying an unlocked device to begin with," he said.

To many, the unlocking issue is just one fight in a bigger picture of consumer choice on the digital frontier. Khanna sees the backing from the executive branch as a positive step, but only one in rolling back the law. "It's going to be a lot more work ahead of us," he says. "We need Congress to act to permanently fix this issue."